A classic confrontation is occurring in Arizona over the freedom of the press. FoxNews.com reporter Jana Winter is standing by fundamental principles of journalism in refusing to disclose who gave her a notebook that a judge had put under a protective order in the case of Colorado shooter James Holmes. Arapahoe County District Judge Carlos Samour is pursuing other avenues for the time being in trying to find out who leaked the notebook, but Winter could still be put on the bench and held in contempt for a failure to disclose her source.
James Holmes sent the notebook to his psychiatrist before he allegedly killed 12 movie theatergoers.
Earlier Arapahoe County Judge William Sylvester denied the motion of the New York-based reporter to postpone her appearance pending her appeal in a New York appellate court to quash the subpoena for her to testify in Colorado.
Holmes’ team is trying to learn who leaked the notebook. However, Colorado does have a shield law as does New York. I have previously testified in Congress on the need for such law, particularly in the federal system, to protect basic press freedoms. For a prior column, click here and for former testimony, here.
Winter and Fox are standing firm on journalistic principles in protecting the source of the information. Colorado law (below) offers a qualified immunity for journalists that would seem to cover this circumstance. Winter’s story cited unnamed law enforcement sources on the content of the notebook.
Winter’s source could still face disclosure from the ongoing investigation but there should be no effort to jail Winter for protecting journalistic confidentiality and sources. Hopefully, the judge will reconsider efforts to coerce her testimony by giving her the choice of maintaining journalistic principles and losing her freedom with a jail stint. This is precisely why we have such laws and reporters have shown a long and proud tradition in this country of protecting sources even in the face of their own incarceration.
Here is the Colorado Shield Law:
The Colorado Press Shield Law, C.R.S. § 13-90-119 states as follows:
(1) As used in this section, unless the context otherwise requires:
(a) “Mass medium” means any publisher of a newspaper or periodical; wire service; radio or television station or network; news or feature syndicate; or cable television system.
(b) “News information” means any knowledge, observation, notes, documents, photographs, films, recordings, videotapes, audiotapes, and reports, and the contents and sources thereof, obtained by a newsperson while engaged as such, regardless of whether such items have been provided to or obtained by such newsperson in confidence.
(c) “Newsperson” means any member of the mass media and any employee or independent contractor of a member of the mass media who is engaged to gather, receive, observe, process, prepare, write, or edit news information for dissemination to the public through the mass media.
(d) “Press conference” means any meeting or event called for the purpose of issuing a public statement to members of the mass media, and to which members of the mass media are invited in advance.
(e) “Proceeding” means any civil or criminal investigation, discovery procedure, hearing, trial, or other process for obtaining information conducted by, before, or under the authority of any judicial body of the state of Colorado. Such term shall not include any investigation, hearing, or other process for obtaining information conducted by, before, or under the authority of the general assembly.
(f) “Source” means any person from whom or any means by or through which news information is received or procured by a newsperson, while engaged as such, regardless of whether such newsperson was requested to hold confidential the identity of such person or means.
(2) Notwithstanding any other provision of law to the contrary and except as provided in subsection (3) of this section, no newsperson shall, without such newsperson’s express consent, be compelled to disclose, be examined concerning refusal to disclose, be subjected to any legal presumption of any kind, or be cited, held in contempt, punished, or subjected to any sanction in any judicial proceedings for refusal to disclose any news information received, observed, procured, processed, prepared, written, or edited by a newsperson, while acting in the capacity of a newsperson; except that the privilege of nondisclosure shall not apply to the following:
(a) News information received at a press conference;
(b) News information which has actually been published or broadcast through a medium of mass communication;
(c) News information based on a newsperson’s personal observation of the commission of a crime if substantially similar news information cannot reasonably be obtained by any other means;
(d) News information based on a newsperson’s personal observation of the commission of a class 1, 2, or 3 felony.
(3) Notwithstanding the privilege of nondisclosure granted in subsection (2) of this section, any party to a proceeding who is otherwise authorized by law to issue or obtain subpoenas may subpoena a newsperson in order to obtain news information by establishing by a preponderance of the evidence, in opposition to a newsperson’s motion to quash such subpoena:
(a) That the news information is directly relevant to a substantial issue involved in the proceeding;
(b) That the news information cannot be obtained by any other reasonable means; and
(c) That a strong interest of the party seeking to subpoena the newsperson outweighs the interests under the first amendment to the United States constitution of such newsperson in not responding to a subpoena and of the general public in receiving news information.
(4) The privilege of nondisclosure established by subsection (2) of this section may be waived only by the voluntary testimony or disclosure of a newsperson that directly addresses the news information or identifies the source of such news information sought. A publication or broadcast of a news report through the mass media concerning the subject area of the news information sought, but which does not directly address the specific news information sought, shall not be deemed a waiver of the privilege of nondisclosure as to such specific news information.
(5) In any trial to a jury in an action in which a newsperson is a party as a result of such person’s activities as a newsperson and in which the newsperson has invoked the privilege created by subsection (2) of this section, the jury shall be neither informed nor allowed to learn that such newsperson invoked such privilege or has thereby declined to disclose any news information.
(6) Nothing in this section shall preclude the issuance of a search warrant in compliance with the federal “Privacy Protection Act of 1980”, 42 U.S.C. sec. 2000aa.